Woodbine Park Nominees Pty Limited v Wingecarribee Shire Council [2021] NSWLEC 1530

Woodbine Park Nominees Pty Limited v Wingecarribee Shire Council [2021] NSWLEC 1530

The Court was satisfied that the modified development remained substantially the same bulk water extraction facility and storage shed/staff amenities as originally approved, notwithstanding extended hours for truck movements. The application had been notified for longer than required and submissions had been...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Class 1 Development Appeal Concerning a S 4.55(2) Modification Application to Development Consent for Bulk Water Extraction and Storage / Determination of Appeal and Proposed Consent Orders After Contentions Were Resolved
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification of Development Consent Under S 4.55(2)' 'substantially the Same Development' 'notification and Consideration of Submissions' 'traffic and Acoustic Impacts From Night Time Truck Movements' 'conditions of Consent' 'consent Orders in Class 1 Development Appeals']
['environmental Planning and Assessment' 'development Consent Modification' 'land and Environment Court Procedure'] ['modification of Development Consent Under S 4.55(2)' 'substantially the Same Development' 'notification and Consideration of Submissions' 'traffic and Acoustic Impacts From Night Time Truck Movements' 'conditions of Consent' 'consent Orders in Class 1 Development Appeals']

Source-derived case record

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Procedural Posture

Class 1 Development Appeal Concerning a S 4.55(2) Modification Application to Development Consent for Bulk Water Extraction and Storage / Determination of Appeal and Proposed Consent Orders After Contentions Were Resolved

Legal Issues

  1. 1 ['Whether the modified development was substantially the same development as originally approved for the purposes of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the modification application had been properly notified and submissions considered for the purposes of s 4.55(2)(c) and (d) of the Environmental Planning and Assessment Act 1979.' 'Whether, on the merits under s 4.55(3) and s 4.15, permanent night time deliveries should be approved and whether the agreed conditions were reasonable and appropriate.' 'Whether a further trial period was necessary for the proposed night time operations.']

Ratio Decidendi

The Court was satisfied that the modified development remained substantially the same bulk water extraction facility and storage shed/staff amenities as originally approved, notwithstanding extended hours for truck movements. The application had been notified for longer than required and submissions had been considered. The traffic and acoustic expert evidence showed that potential night time traffic, noise and wildlife impacts could be managed by conditions, including acoustic controls, access upgrades and wildlife signage, and that a trial period was unnecessary. The agreed conditions fairly and reasonably related to the development and made approval of the modification appropriate.

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Application 03/2011.06 pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 to modify the development consent LUA03/2011 granted on 20 July 2006 (as amended by previous modification applications), is modified in accordance with the conditions set out in Annexure A.'...